Wright v Murphy [2024] NSWLEC 1293

Land and Environment Court New South Wales

Medium Neutral Citation: Wright v Murphy [2024] NSWLEC 1293 Hearing dates: 22 February 2024 Date of orders: 4 June 2024 Decision date: 04 June 2024 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – claim of likely damage or injury – no damage or injury likely due to refused DA – no jurisdiction to make orders Legislation Cited: Trees (Disputes between Neighbours) Act 2006 Pt 2, ss 7, 8, 9, 10, 12 Cases Cited: Bhuta v Cefai [2023] NSWLEC 1330 McPherson v Lake [2017] NSWLEC 1081 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Central Coast Development Control Plan 2022 Standards Australia, AS 4970—2009 Protection of trees on development sites, August 2009 Category: Principal judgment Parties: Andrew Martin Wright (Applicant) Robert Murphy (Respondent) Representation: A Wright (Self represented) (Applicant) R Murphy (Self represented) (Respondent) File Number(s): 2023/429059 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: Robert Murphy, the respondent, owned two adjoining 'bush blocks' overlooking Mooney Mooney Creek in Cheero Point for about 43 years. Mr Murphy recently sold one block to Andrew Wright, the applicant, and plans to build a dwelling towards the rear of the adjacent block. 2. After accepting an offer from Mr Wright, the respondent claimed to have received a much higher offer from a neighbour. Nonetheless, Mr Murphy chose to honour the offer he had accepted from Mr Wright, and the sale was completed. The respondent submitted that Mr Wright said his proposed dwelling would blend with the environment and had claimed to have no money to pay a higher price for the block. 3. Soon after, Mr Murphy was notified of Mr Wright's development application (DA) from Central Coast Council (Council). Mr Murphy was dissatisfied that Mr Wright's proposed dwelling was much larger than expected, included a swimming pool, and required various trees to be removed and he alleged that Mr Wright had misrepresented his intentions during negotiations. 4. A comprehensive Arboricultural Impact Assessment, dated 24 October 2023, was produced for Mr Wright by Temporal Tree Management (Temporal report). In the Executive Summary, seven trees which "will require removal to facilitate the proposed development" were identified as they "will sustain major TPZ encroachments that are likely to have a severe impact on their viability. The impact of these major encroachments cannot be suitably mitigated without major alteration to the proposed design plan". TPZ is an abbreviation of Tree Protection Zone. The report recommended replanting within the adjacent undisturbed bushland to compensate for the tree removals. 5. A Corymbia gummifera (Red Bloodwood) (the tree), one of the trees identified for removal, was located on Mr Murphy's land very close to the common boundary. It was assigned a "High Retention Value" in the Temporal report and Mr Murphy refused Mr Wright's request for removal of the tree. Mr Wright considered the building alterations required to accommodate the tree's safe retention would compromise his development, thus he was loath to make changes. Mr Wright made ongoing requests for removal of the tree amongst negotiations around other issues, such as privacy, but Mr Murphy was resolute in his refusal to remove the tree. 6. Council determined that retention of both the tree and the existing proposed development would compromise the tree's roots and likely result in the tree falling. Thus, Council would not approve this element of the DA until the issue was resolved. 7. Consequently, Mr Wright made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), seeking removal of the tree from the respondent's adjacent property.